Muhammad Waqar vs Ch. Khalid Akbar

Stereo. H C J D A 38.

JUDGMENT SHEET

LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI

JUDICIAL DEPARTMENT

Civil Revision No.657/2024 Muhammad Waqar Versus Ch. Khalid Akbar

JUDGMENT

Date of Hearing: 16.09.2026 Petitioner by: Barrister Ismavia Rafat, Advocate. Ch. Shaharyar Tariq, Advocate.

Respondent by: Syed Intikhab Hussain Shah, Advocate.

Anwaar Hussain, J. Facts of the case are that the respondent instituted a suit for recovery of Rs.100,000,000/- as damages. The petitioner contested the suit by filing written statement, whereafter the Trial Court framed issues vide order dated 07.01.2021. During recording of evidence, the respondent appeared as PW.1, tendered documentary evidence and concluded his examination-in-chief whereafter, on 14.10.2021, a statement was recorded by the respondent that he has concluded his examination-in-chief, and the case was adjourned for cross-examination of PWs. However, after a number of adjournments sought by both sides, the respondent, on 07.12.2023, moved an application seeking permission to produce certain additional documents in statement of PW.1. The Trial Court allowed the application through the impugned order dated 11.07.2024. Hence, this civil revision.

2.Barrister Ismavia Rafat, Advocate, learned counsel for the petitioner contends that once the respondent had completed his examination-in-chief and voluntarily recorded a statement on 14.10.2021 that he has concluded his evidence, he was estopped in terms of Article 114 of the Qanun-e-Shahadat Order, 1984 (“QSO”), from subsequently introducing additional documents in evidence. She maintains that permitting production of documents at such a belated stage amounts to

allowing the respondent to improve his case after closure of his examination-in-chief. In this regard, reliance is placed upon case reported as Zafar Mehmood and another v. Mst. Shaheen Baig and another (2023 CLC 968 Islamabad).

3.Conversely, Syed Intikhab Hussain Shah, learned counsel for the respondent supports the impugned order and submits that the documents sought to be produced had already been disclosed in the list of reliance; predominantly form part of public and/or judicial record; and, above all, were sought to be produced before commencement of cross-examination of PW.1. According to him, no element of surprise or prejudice is, therefore, involved.

4.Arguments heard. Record perused.

5.The question of law arising for determination is as under:

Whether production of a document after conclusion of examination-in-chief, but before commencement of cross- examination, is barred merely on account of the stage at which it is sought to be produced, particularly where the document already finds mention in the list of reliance and its production neither introduces a new factual foundation nor causes irremediable prejudice to the opposite party?

6.The answer requires examination of the scheme embodied in the Code of Civil Procedure, 1908 (“CPC”) in general and Order XIII Rules 1 and 2 thereof in particular. Rule 1 requires the parties to produce, at the first hearing of the suit, the documentary evidence in their possession or power upon which they intend to rely. Rule 2 regulates the consequence of failure to do so. Significantly, it does not impose an absolute embargo upon reception of a document at a subsequent stage. Rather, such document may be received where good cause for its earlier non-production is shown to the satisfaction of the Court, subject to the Court recording reasons for receiving the same.

7.The distinction between disclosure of a document and its formal production in evidence assumes significance in the present case. Where

a document was never disclosed, finds no mention in the list of reliance and is sought to be introduced at a belated stage of trial, the Court would legitimately insist upon strict compliance with Order XIII Rule 2, CPC, lest the opposite party be confronted with a case which it had no opportunity to anticipate. Quite differently, where the document already stands disclosed in the list of reliance, its subsequent production does not carry the element of surprise. The opposite party is already put on notice that reliance may be placed upon such document and can shape its defence accordingly.

8.Moreover, there is no cavil that procedural law certainly discourages piecemeal production of evidence and does not permit a litigant to deliberately withhold material in order to spring a surprise upon the adversary. At the same time, the procedural requirement cannot be converted into an inflexible rule that a document, despite prior disclosure and relevance to an existing issue, must invariably be excluded merely because its formal production is sought after examination-in-chief has been recorded. The controlling considerations remain whether it was mentioned in the list of reliance, the explanation for non-production at the prescribed stage, nature and relevance of the document, stage of the proceedings, possibility of surprise, and, most importantly, whether its reception causes prejudice to the opposite party which cannot adequately be cured by an opportunity to meet the evidence.

9.In the present case, on a pointed query by this Court, learned counsel for the petitioner has not disputed that the documents allowed to be produced by the Trial Court had already been mentioned in the list of reliance of the respondent. Moreover, most of them form part of public and/or judicial record and relate to the criminal proceedings, involving the parties, which constitute the factual substratum of the respondent’s claim for damages that the respondent was falsely dragged into the same. Their production, therefore, neither introduces a new cause of action nor travels beyond the factual foundation already laid in the plaint. More importantly, the application was allowed before cross-

examination of PW.1 had commenced. The petitioner consequently retains an unimpaired opportunity to confront PW.1 with such documents, challenge their relevance, admissibility and evidentiary worth and, thereafter, lead evidence in rebuttal in accordance with law. Hence, emphasis placed on Article 114 of the QSO is misplaced inasmuch as said provision of law does not advance the case of the petitioner. Estoppel operates against a person who, by his declaration, act or omission, has intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. Mere conclusion of examination-in-chief cannot, by itself, constitute a representation that attracts the doctrine of estoppel against exercise of the Trial Court's statutory discretion under Order XIII Rule 2, CPC. The question is consequently one of permissible reception of documentary evidence under the procedural law rather than doctrine of estoppel.

10.No doubt, procedural timelines governing production of documents serve an important purpose and ordinarily require strict observance. Nevertheless, Order XIII Rule 2, CPC itself preserves judicial discretion to receive documentary evidence subsequently upon satisfaction of the statutory conditions. Such discretion is to be exercised judicially and not mechanically, by balancing procedural discipline against the necessity of deciding the real controversy on the relevant material, while ensuring that no unfair advantage is conferred upon either side.

11.Similarly, the reliance upon case of Zafar Mehmood supra is equally misplaced. In the said case, the documents sought to be subsequently produced were private documents which had not been included in the list of documents submitted by the party concerned. It was in that context that the Court emphasized the scheme of the CPC requiring timely disclosure of documentary material so that a civil trial does not become a trial by ambush. The principle is unexceptionable; however, its application necessarily depends upon the facts of each case. A document never disclosed and introduced after the evidence has substantially progressed cannot be placed at the same pedestal as a

document already disclosed in the list of reliance and sought to be formally produced before the opposite party, who has not even commenced cross-examination of the witness through whom it is required to be tendered.

12.There is yet another aspect of the matter. The delay between conclusion of examination-in-chief and filing of the application cannot exclusively be attributed to the respondent. The record reflects that adjournments were sought by both sides and cross-examination of PW.1 had not commenced when the application was moved as the petitioner—being defendant, sought number of adjournments to cross examine the PWs. The petitioner, therefore, cannot successfully invoke the passage of time alone as constituting prejudice.

13.It is imperative to hold that no universal rule can be laid down that production of a document must either invariably be allowed or invariably be refused merely because examination-in-chief has been concluded. The stage of the trial is relevant, but not conclusive. The Court must examine whether the document had earlier been disclosed; whether good cause exists for its delayed production; whether it introduces a case inconsistent with the pleadings; whether its reception would take the opposite party by surprise; and whether any resulting prejudice can adequately be cured by affording an opportunity of cross- examination or rebuttal. The discretion under Order XIII Rule 2, CPC has to be exercised on these considerations, with reasons recorded in support thereof.

14.Keeping in sight above legal analysis, this Court is of the opinion that the Trial Court committed neither illegality nor material irregularity in permitting production of the documents as the trial had not progressed beyond the stage at which the petitioner could effectively confront the witness regarding them; and no prejudice incapable of being remedied through cross-examination or rebuttal evidence has been demonstrated.

15.For what has been discussed above, this civil revision, being devoid of merit, is accordingly dismissed. It is, however, clarified that all objections regarding admissibility, proof and evidentiary value of the documents in question shall remain open for determination by the Trial Court at the appropriate stage, uninfluenced by any observation made herein.

(ANWAAR HUSSAIN)

Judge Approved for reporting.

Judge

Announced in Open Court on same day. Dictated on 17.09.2026 and finalized on 23.09.2026.

Akram